Citation Nr: 9909501
Decision Date: 04/06/99 Archive Date: 04/16/99
DOCKET NO. 97-33 522 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Des Moines,
Iowa
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Robert W. Legg, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a July 1997 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Des Moines, Iowa, which denied service connection for the
cause of the veteran's death. The appellant, the veteran's
widow, appealed the decision. The veteran had active service
from January 1944 to April 1946.
FINDINGS OF FACT
1. The appellant was married to the veteran at the time of
his death.
2. The veteran died in January 1997 due to cardiopulmonary
arrest due to or as a consequence of small cell carcinoma of
the lung.
3. There is no competent medical evidence to show that the
veteran became nicotine dependent during service.
4. There is no competent medical evidence to show that the
veteran's small cell carcinoma of the lung was proximately
caused by the use of nicotine during his service.
CONCLUSION OF LAW
The appellant's claim for service connection for the cause of
the veteran's death is not well grounded. 38 U.S.C.A. § 5107
(West 1991); 38 C.F.R. § 3.312 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In a claim for service connection for the cause for the
veteran's death, there must be evidence that a disorder
incurred in or aggravated by military service either caused
or contributed substantially or materially to cause the
veteran's death. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R.
§ 3.312 (1998). The threshold issue, however, is whether the
appellant has presented a well-grounded claim for service
connection for the cause of the veteran's death. A claimant
must submit evidence sufficient to justify a belief by a fair
and impartial individual that the claim is plausible and
capable of substantiation. 38 U.S.C.A. § 5107(a) (West
1991); Epps v. Gober, 126 F.3d 1464, 1468 (1997). Although
the claim need not be conclusive, it must be accompanied by
supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609,
611 (1992).
The veteran served during World War II. He died in January
1997 as a result of lung cancer. The appellant is his
surviving spouse. She does not contend, nor does the record
reflect, that the veteran had the fatal disease, small cell
carcinoma of the lung, in service or that it was manifested
to a compensable degree within one year following his
separation from active service. Rather, the appellant
contends that smoking, which began during his active service,
caused the veteran's death. Under VA General Counsel
precedent opinion 2-93 (January 13, 1993), service connection
for disability or death may be established if the evidence
shows that the claimed injury or disease resulted from
tobacco use in the line of duty during active service.
adjudicators, based upon medical principals relating to that
condition. Under VA General Counsel Precedent Opinion 19-37
(May 13, 1997), in order to have a well-grounded claim, the
appellant must present competent medical evidence both that
nicotine dependence caused or contributed to the veteran's
death and that a link exists between such nicotine dependence
and service. See G.C. Prec 19-97 at 3. Although the
Transportation Equity Act for the 21st Century prohibited
establishing service connection for tobacco use for claims
filed after the President signed the Act into law in June
1998, the appellant's claim was filed prior to this date.
The veteran's service medical records do not include any
reference to smoking. A November 1992 discharge summary from
the VA medical center in Omaha, which recorded several
diagnoses of various physical ailments, also noted that the
veteran had a 60-pack-year history of smoking. In a March
1996 VA discharge summary from that same facility, it was
noted that the veteran related that he discontinued tobacco
use five years previously, but that prior to that, he was a
50-pack-year smoker. At that time the veteran was diagnosed
with small cell carcinoma of the lung. In January 1997, the
veteran was again admitted to the VA medical center in Omaha
with complaints of increasing shortness of breath. The
veteran died at that facility later in January 1997. The
Certificate of Death issued by the state of Nebraska shows
that the immediate cause of the veteran's death was
cardiopulmonary arrest due to or a consequence of small cell
carcinoma of the lung. An autopsy was not performed.
In September 1998, the appellant informed the RO that the
veteran smoked to calm his nerves, and that he never stopped
smoking after leaving service. The appellant testified
before the undersigned Member of the Board sitting at the RO
in October 1998 that the veteran began smoking during service
to calm himself. She further stated that after his
separation from service the veteran continued to smoke
cigarettes, and essentially, that he became addicted to
cigarettes during service. The appellant testified that
cancer was detected by VA in February 1996, and that the
veteran had difficulty breathing for some five years prior to
his death. Other statements received by the RO from the
veteran's sister and friend in November 1997 essentially
repeat the appellant's contention that the veteran began
smoking during his active service. The Board finds that the
appellant is credible in her statements that the veteran
began smoking during his active service.
However, even assuming for discussion that the veteran's long
history of cigarette smoking was the proximate cause of his
lung cancer, there is no medical evidence to support the
appellant's contention that nicotine addiction began during
the veteran's service, as opposed to subsequent, post-service
use of cigarettes. Only the appellant has asserted that the
veteran developed an addiction to nicotine during service.
The appellant is competent to state that the veteran began
smoking during service, but as a layperson she is not
competent to provide a medical opinion that addiction to
nicotine began during service. See Espiritu v. Derwinski, 2
Vet. App. 492, 494-495 (1992). No physician or other medical
professional has provided evidence in this case that nicotine
dependence began during the veteran's service.
Further review of the evidence of record reflects that no
medical professional has established a nexus or relationship
between the veteran's use of tobacco during service to his
diagnosis of small cell carcinoma that proximately led to his
death. Even though the veteran's social history of tobacco
use was noted in the veteran's VA treatment records, a review
of those records does not reveal that the veteran's use of
tobacco during service has been attributed as the cause of
his later developing cancer. Only the appellant has asserted
there is a relationship between the veteran's use of tobacco
during service, his subsequent addiction to nicotine, and his
later-developing lung cancer. However, also as previously
discussed, she is not competent to provide a medical opinion,
such as an opinion on medical causation. Espiritu, 2 Vet.
App. at 494-495.
Regrettably, in light of the evidence, the Board must
conclude that the appellant's claim for service connection
for cause of the veteran's death, claimed as being secondary
to tobacco use, is not well grounded and must be denied on
this basis. VA has no duty to assist a claimant in
developing the evidence in the absence of a well-grounded
claim. Epps, 126 F.3d at 1468; Grivois v. Brown, 6 Vet. App.
136, 140 (1994). Further, the Board is unaware of any
outstanding evidence which could serve to well ground the
appellant's claim for service connection. Consequently,
there is no further duty on the part of VA to inform the
appellant of the evidence necessary to complete her
application for the benefits sought. 38 U.S.C.A. § 5103
(West 1991); McKnight v. Gober, 131 F. 3d 1483 (Fed. Cir.
1997).
ORDER
Service connection for cause of the veteran's death is
denied.
CHARLES E. HOGEBOOM
Member, Board of Veterans' Appeals
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